Citation Nr: 0205795
Decision Date: 06/04/02 Archive Date: 06/13/02
DOCKET NO. 95-12 581 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Whether new and material evidence has been presented to
reopen a claim for service connection for chronic ear
infections.
(The issue of entitlement to service connection for
psychiatric disability, to include post-traumatic stress
disorder (PTSD), will be addressed in a separate decision of
the Board.)
REPRESENTATION
Appellant represented by: Sandra E. Booth, Attorney
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Herman, Counsel
INTRODUCTION
The veteran had active military service from December 1965 to
November 1967.
These matters come to the Board of Veterans' Appeals (Board)
on appeal of rating decisions of the Department of Veterans
Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The
veteran was afforded a personal hearing at the RO before a
Hearing Officer in March 1997. A transcript of that hearing
has been associated with the claims folder.
In a January 1999 decision, the Board denied the veteran's
claim for service connection for psychiatric disability to
include PTSD and determined that new and material evidence
had not been submitted to reopen the claim for service
connection for chronic ear infections. The veteran appealed
this decision to the U.S. Court of Appeals for Veterans
Claims (Court). In a November 1999 order, the Court granted
a joint motion of the parties, and vacated the Board's
decision and remanded the case to the Board for the purpose
of affording the veteran an opportunity to appear for a
personal hearing before a traveling member of the Board. The
Board remanded these matters to the RO in July 2000. On
October 16, 2001, the veteran, through his attorney, withdrew
his request for a personal hearing before a member of the
Board.
The Board observes that the veteran filed additional medical
records since the July 2000 Board remand that had not been
previously considered by the RO. However, in a statement
received in January 2002, the veteran waived review of the
additional evidence by the RO and the issuance of a
supplemental statement of the case. Therefore, pursuant to
38 C.F.R. § 20.1304(c) (2001), that evidence need not be
considered by the RO.
Finally, the Board is undertaking additional development on
the issue of service connection for psychiatric disability,
to include PTSD, pursuant to authority granted by 67 Fed.
Reg. 3,099, 3,104 (Jan. 23, 2002) (to be codified at 38
C.F.R. § 19.9(a)(2)). When it is completed, the Board will
provide notice of the development as required by Rule of
Practice 903. (67 Fed. Reg. 3,099, 3,105 (Jan. 23, 2002) (to
be codified at 38 C.F.R. § 20.903.) After giving the notice
and reviewing your response to the notice, the Board will
prepare a separate decision addressing this issue.
FINDINGS OF FACT
1. In an unappealed rating decision dated in December 1973,
the claim of entitlement to service connection for a right
ear condition was denied.
2. The evidence received subsequent to the December 1973
decision is either cumulative or redundant of the evidence
previously of record or is not so significant by itself or in
the context of the evidence previously of record that it must
be considered to fairly decide the merits of the claim.
CONCLUSION OF LAW
No new and material evidence has been presented to reopen a
claim of entitlement to service connection for chronic ear
infections. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §
3.156(a) (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000
The Board notes that during the pendency of the appellant's
appeal but after the RO's most recent consideration of the
veteran's claim to reopen, the Veterans Claims Assistance Act
of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000),
was signed into law. It is codified at 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2001). The
liberalizing provisions of the VCAA are applicable to the
issue on appeal. See Karnas v. Derwinski, 1 Vet. App. 308,
312-13 (1991).
The Act essentially eliminates the requirement that a
claimant submit evidence of a well-grounded claim, and
provides that VA will assist a claimant in obtaining evidence
necessary to substantiate a claim but is not required to
provide assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. It also requires VA to notify the claimant and
the claimant's representative, if any, of any information,
and any medical or lay evidence, not previously provided to
the Secretary that is necessary to substantiate the claim.
As part of the notice, VA is to specifically inform the
claimant and the claimant's representative, if any, of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant.
Nothing in the Act shall be construed to require the
Secretary to reopen a claim that has been disallowed except
when new and material evidence is presented or secured, as
described in 38 U.S.C.A. § 5108. See 38 U.S.C. § 5103A(f).
VA has amended its regulations to establish clear guidelines
consistent with the intent of Congress regarding the timing
and the scope of assistance VA will provide to a claimant who
files a substantially complete application for VA benefits or
who attempts to reopen a previously denied claim. 66 Fed.
Reg. 45,620, 45,630-32 (August 29, 2001) (to be codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326).
The rule is effective November 9, 2000, except the amendment
to 38 C.F.R. § 3.156(a), which is effective August 29, 2001.
66 Fed. Reg. 45,620, 45, 629.Except for the amendment to 38
C.F.R. § 3.156(a), the second sentence of 38 C.F.R. §
3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), the provisions of
the rule merely implement the VCAA and do not provide any
rights other than those provided by the VCAA. The provisions
implementing the VCAA are applicable to any claim for
benefits received by VA on or after November 9, 2000, as well
as to any claim filed before that date but not decided by VA
as of that date. 66 Fed. Reg. 45,620, 45,629.
The amended definition of new and material evidence, to be
codified at 38 C.F.R.
§ 3.156(a), is not liberalizing. It applies to any claim to
reopen a finally decided claim received on or after August
29, 2001. 66 Fed. Reg. 45,620, 45,629. It does not apply to
the veteran's claim to reopen, which was received long before
that date.
The second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. §
3.159(c)(4)(iii), which relate to the assistance VA will
provide to a claimant trying to reopen a finally decided
claim, provide rights in addition to those provided by the
VCAA. The authority to provide such additional assistance is
provided by 38 U.S.C. § 5103A(g), which provides that nothing
in § 5103A shall be construed to preclude VA from providing
such other assistance to a claimant in substantiating a claim
as VA considers appropriate. Because VA has no authority to
make these provisions retroactively effective, they are
applicable on the date of the rule's final publication,
August 29, 2001. 66 Fed. Reg. 45,620, 45,629. They are not
applicable to the veteran's claim to reopen, which was
received long before that date.
The record reflects that the RO has notified the veteran of
the evidence considered in connection with his claim to
reopen, and of the law and regulations governing the finality
of unappealed decisions and the criteria for the reopening of
his claim. The RO has also notified the veteran of the
evidence needed to reopen his claim for service connection
for chronic ear infections and has assisted him to every
extent possible in obtaining identified evidence potentially
probative of his claim. The veteran has not identified
additional evidence which could be obtained to support
reopening of his claim.
The Board also notes that the veteran has been in receipt of
Social Security Administration (SSA) disability benefits
since September 1999, and that there is no indication that
the RO has sought to obtain a copy of the decision that
granted SSA benefits to the veteran or the records upon which
the decision was based. However, the veteran has explicitly
stated that his receipt of disability benefits through the
SSA was granted because of his PTSD. He has made no
allegation that his ear infections had any impact on his
award of SSA disability benefits, or that the records from
the SSA contained any evidence probative of his claim to
reopen. As such, the Board finds that there would be no
useful purpose in trying to obtain the veteran's SSA records.
In sum the facts relevant to this claim to reopen have been
properly developed and no further action is required to
comply with the notice or duty to assist provisions of the
VCAA and the implementing regulations. A remand for RO
consideration of the claim to reopen in light of the VCAA and
implementing regulations would only serve to further delay
resolution of the claim with no benefit flowing to the
veteran. Accordingly, the Board will render a decision on
this matter.
New and Material Evidence
Generally, a claim which has been denied in an unappealed RO
decision or an unappealed Board decision may not thereafter
be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c)
(West 1991). The exception to this rule is 38 U.S.C.A. §
5108, which provides that if new and material evidence is
presented or secured with respect to a claim which has been
disallowed, the Secretary shall reopen the claim and review
the former disposition of the claim.
New and material evidence is defined as evidence not
previously submitted to agency decisionmakers which bears
directly and substantially upon the specific matter under
consideration; which is neither cumulative nor redundant; and
which, by itself or in connection with evidence previously
assembled, is so significant that it must be considered in
order to fairly decide the merits of the claim. 38 C.F.R. §
3.156(a).
In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the
United States Court of Appeals for the Federal Circuit noted
that new evidence could be sufficient to reopen a claim if it
could contribute to a more complete picture of the
circumstances surrounding the origin of a veteran's injury or
disability, even where it would not be enough to convince the
Board to grant a claim.
The evidence which must be considered in determining whether
there is a basis for reopening the claim is that evidence
added to the record since the last disposition in which the
claim was finally disallowed on any basis. See Evans v.
Brown, 9 Vet. App. 273 (1996).
For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence,
although not its weight, is to be presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992). In Kutscherousky v.
West, 12 Vet. App. 369 (1999) the Court held that the prior
holdings in Justus and Evans that the credibility of the
evidence is to be presumed was not altered by the Federal
Circuit decision in Hodge.
The veteran was denied entitlement to service connection for
chronic ear infections in an unappealed rating decision of
December 1973. Although the evidence then of record included
service medical records showing treatment for serous otitis
of the ears and chronic otitis externa, the RO denied the
claim because there was no evidence of an ear infection at
discharge, or that the veteran had residuals of the service
infections.
The evidence received since the October 1973 rating decision
includes outpatient treatment records from the Huntington VA
Medical Center dated from September 1990. Significantly, the
veteran was seen in May 1993 for complaints of a left earache
and diagnosed as having left ear otitis media. He was seen
for similar complaints of earaches in March 1994 and April
1994. The veteran was diagnosed as having mild otitis
externa of the left ear in August 1994. The veteran
complained of an ear infection in October 1994. The veteran
again complained of earaches in November 1994. This evidence
relates to the status of the veteran's ears many years after
the veteran's discharge from service and documents no medical
opinion suggesting that the post-service ear problems are
etiologically related to the ear problems noted in service or
that they are otherwise etiologically related to service.
Therefore, the medical evidence added to the record is not
material.
The evidence received since the October 1973 rating decision
also includes personal statements and testimony from the
veteran. The veteran asserts that his current problem with
ear infections is etiologically related to the ear problems
he experienced during his active service. Although an
individual may certainly be able to provide an accurate
statement regarding firsthand knowledge of events or
observations, a lay person may not offer evidence that
requires medical knowledge. See Espiritu v. Derwinski, 2
Vet.App. 492, 494 (1992). There is no evidence that the
veteran has the requisite medical background to render a
credible opinion regarding the etiology of his current ear
infections.
In view of the foregoing, reopening of the claim for service
connection for chronic ear infections is not warranted.
ORDER
New and material evidence not having been presented,
reopening of the claim for service connection for chronic ear
infections is denied.
Shane A. Durkin
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.